DAYLIGHT, SUNLIGHT
& RIGHTS OF LIGHT
INFORMATION PACK
WWW.RIGHTTOLIGHTSURVEYORS.CO.UK
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CONTENTS
PLANNING REPORTS
RIGHTS OF LIGHT
BRE: Daylight & Sunlight Planning Reports
Rights of Light Calculations & Reports
When deciding over planning applications
Local Planning Authorities will be guided by
the tests laid out in the Building Research
Establishment (BAE) document ‘Site Layout
Planning for Daylight and Sunlight’,
A guide to good practice, Second Edition.
We provide design advice and reports to
confirm that new developments meet
planning requirements.
A right of light is a civil matter and is separate
from daylight and sunlight as considered
by Local Planning Authorities. Rights of light
should therefore be considered even if
planning permission has been granted. Rights
of light can affect both domestic and
non-domestic propenies -even non-habitable
rooms are capable of enjoying a right of light.
We tailor our advice to suit your project
requirements. We can help you maximise site
potential and manage project risks.
FACT SHEET 1:
25 And 45 Degree Rules of Thumb
FACT SHEET 2:
BRE ‘Site Layout Planning for Daylight
and Sunlight’
FACT SHEET 3:
A Guide to Legal Rights of Light
FACT SHEET 4:
Light Obstruction Notices
FACT SHEET 5:
Important Rights of Light Cases
FACT SHEET 6:
Rights of Light Risk Mitigation Tips
25 and 45 Degree
Rules of Thumb
Fact Sheet 1
Local Planning Authorities will usually only
approve a planning application if it does not
have an adverse effect on daylight and
sunlight to neighbouring properties.
The BRE guide gives two helpful rule of thumb
tests which determine whether or not further
detailed daylight and sunlight tests are
required.
The daylight and sunlight tests normally used
by Local Planning Authorities when
considering planning applications are set out
in the Building Research Establishment (BRE)
document ‘Site Layout Planning for Daylight
and Sunlight: A guide to good practice (2011)’.
The further detailed daylight and sunlight
tests are covered in Fact Sheet 2.
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25º
DAYLIGHT AND SUNLIGHT LIKELY TO BE ACCEPTABLE
DAYLIGHT AND SUNLIGHT
TO NEIGHBOURING WINDOWS
The 25° test is used where the development is
opposite the window, as shown in the diagram
opposite. The centre of the lowest habitable
room window should be used as the reference
point for the test.
If the whole of the proposed development
falls beneath a line drawn at 25° from the
horizontal, then there is unlikely to be a
substantial effect on daylight and sunlight.
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If the proposed development goes above
the 25° line, it does not automatically follow
that daylight and sunlight levels will be below
standard. However, it does mean that further
checks on daylight and sunlight are required.
The further checks can be undertaken using
the detailed BRE daylight and sunlight tests
listed overleaf and covered in more detail in
Fact Sheet 2.
25º
DETAILED DAYLIGHT AND SUNLIGHT STUDY REQUIRED
25º Degree Test
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x
x
DAYLIGHT AND SUNLIGHT
DETAILED DAYLIGHT AND SUNLIGHT REQUIRED
In the above example, the extension has a sloping roof. In this situation the BRE guide states
that the height of the extension should be taken halfway along the slope of the roof.
45º TEST
The 45° test is used to check extensions that
are perpendicular to a window - as in the
example opposite.
If the centre of the neighbour’s window lies on
the extension side of both of the 45° lines (on
plan and elevation), then the more detailed
BRE tests are required.
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Otherwise, daylight and sunlight levels are
unlikely to be adversely affected because light
will continue to be received either over the
roof, or beyond the end of the extension.
The Detailed BRE Tests
Where the 25° or 45° tests are breached, daylight and sunlight levels should be checked using the
BRE’s detailed tests:
•
•
•
•
Vertical Sky Component
Daylight Distribution / No Sky Line (where room layouts are known)
Average Daylight Factor (where BRE Appendix F criteria apply)
Daylight and Sunlight within the development
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DAYLIGHT AND SUNLIGHT
WITHIN THE DEVELOPMENT
The 25° test can be adapted to check whether
or not the proposed development will itself
achieve an acceptable standard of daylight.
The BRE guide gives the following advice on
window design.
If the obstruction angle is:
•
•
•
•
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less than 25°, conventional window design will
usually give reasonable results.
between 25° and 45°, special measures (enlarged windows, changes to room layout) are
usually needed to provide adequate daylight.
between 45° and 65°, it is very difficult to
provide adequate daylight, unless very large
windows are used.
more than 65°, it is often impossible to achieve
reasonable daylight, even if the whole window
wall is glazed.
GUIDELINES
COMPLIANCE
Notwithstanding the “rule of thumb”
guidelines, it is still often possible to
achieve adequate daylight and sunlight
(even with the larger obstruction angles
noted above) using the following BRE tests
as tools to guide the design:
Fact Sheet 2 gives more information on
these tests. To maximise compliance with
the tests, where possible, the following
design features should be implemented:
•
•
•
•
Average Daylight Factor
Daylight Distribution / No Sky Line
Room Depth
Annual Probable Sunlight Hours
•
•
•
•
•
Light coloured interiors
Large windows
High transmittance glazing
Shallow room depths
South facing living room windows
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BRE ‘Site Layout Planning for
Daylight and Sunlight’
Fact Sheet 2
The daylight and sunlight tests used by Local
Planning Authorities when considering
planning applications are set out in the
Building Research Establishment (BRE)
document ‘Site Layout Planning for Daylight
and Sunlight: A guide to good practice (2011)’.
This fact sheet explains the following tests
that are covered in the guide:
Daylight to Windows
• Vertical Sky Component (VSC)
• Daylight Distribution / No Sky Line
• Average Daylight Factor (ADF)
Sunlight to Windows
• Annual Probable Sunlight Hours (APSH)
Overshadowing
• Overshadowing to Gardens and Open
Spaces
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VERTICAL SKY COMPONENT (VSC)
The Vertical Sky Component (VSC) is a
measure of the amount of visible sky available
from a point on a vertical plane. The reference
point used for the calculation is usually the
centre of the vertical face of the window.
The VSC test is the main test used to assess
the impact of a development on neighbouring
properties. Since the daylight measurements
are taken on the external face of the window,
access inside the neighbouring property is not
required in order to perform the test.
The test should be applied to the main window of each habitable room. Where a room
has two or more windows of equal size, the
mean of their VSC’s is taken.
DAYLIGHT TO WINDOWS
Diffuse dayIight is the Iight received from the
sun which has been diffused through the sky.
Even on a cloudy day, when the sun is not
visible, a room will continue to receive daylight
from the sky. This is diffuse daylight.
Diffuse daylight calculations should be
undertaken for dwellings and non-domestic
properties where daylight is required. For
dwellings, calculations should be
undertaken for habitable rooms such as living
rooms, kitchens and bedrooms.
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The BRE guide states that windows to
bathrooms, toilets, storerooms, circulation
areas and garages need not be tested.
The VSC will be 0% where the point being
measured has a completely obstructed view of
the sky; or just under 40% where the view is
completely unobstructed.
The test can be adapted for sloping or
horizontal roof lights where the maximum
equivalent VSC for a completely unobstructed
horizontal roof light is 100%.
The BRE guide explains that diffuse daylight
may be adversely affected if, after a
development, the VSC is both less than 27%
and less than 0.8 times its former value.
DAYLIGHT DISTRIBUTION / NO SKY LINE
The distribution of daylight within a room can
be checked by plotting the ‘no sky line’. The no
sky line is a line which separates areas of
the working plane that do and do not have a
direct view of the sky.
The Daylight Distribution test should be
applied to habitable rooms in new dwellings.
Where room layouts are known, the test can
also be used to check the impact of a
development on the light receivable by
existing neighbouring properties.
The BRE guide states that if a significant part
of the working plane (normally more than
20%) lies beyond the no sky line (i.e. receives
no direct skylight), then the distribution of
daylight within the room will be poor and
supplementary electric lighting will be
required.
The BRE guide explains that the daylight
distribution of a neighbouring property may
be adversely affected if, after the
development, the area of the working plane
which receives direct skylight is reduced to
less than 0.8 times its former value.
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AVERAGE DAYLIGHT FACTOR (ADF)
The Average Daylight Factor (ADF) test is
mainly used to check the light levels within
new developments. The ADF is a measure of
the light within a room and therefore
information on internal room layouts is needed in order to apply the test.
The BRE guide recommends an ADF of 5%
or more if there is no supplementary electric
lighting, or 2% or more if supplementary
electric lighting is provided. There are
additional minimum recommendations for
dwellings of 2% for kitchens, 1.5% for living
rooms and 1% for bedrooms.
A special procedure is required for floor to
ceiling windows such as patio doors. If part of
a window is below the height of the
working plane (a horizontal plane 0.85m
above the floor in housing), this portion
should be treated as a separate window.
The ADF for this window has an extra factor
applied to it, to take account of the reduced
effectiveness of low level glazing in lighting the
room.
The ADF for the portion of the window above
the working plane is calculated in the normal
way without this additional factor, and the
ADFs for the two portions are added together.
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The Average Daylight Factor (df) can be
calculated using the following formula:
where:
T
is the diffuse visible transmittance of the glazing
M
is the maintennace factor, allowing for the effects of dirt
Aw
is the net glazed area of the
window (m2)
A
is the total area of the room surfaces
R
is thier average reflectance within the room
°
is the angle of visible sky in degrees
ROOM DEPTH
The Room Depth test is used for new
dwellings to ensure that rooms are designed
to enable adequate light penetration.
The test need not be applied to rooms with
windows in more than one wall. If a room is lit
by windows in one wall only, the depth of the
room L should not exceed the limiting value
given by:
L + L
W
H
<
2
1-Rb
where :
W
is the room width
H
is the window head height above floor level
Rb
Is the average reflectance of the
surfaces in the rear half of the room
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ANNUAL PROBABLE SUNLIGHT HOURS (APSH)
OVERSHADOWING TO GARDENS AND OPEN SPACES
The BRE guide recommends that, where
possible, each new dwelling should have at
least one main living room window that faces
within 90 degrees of due south. However, the
guide acknowledges that this is not always
possible, especially when it is in relation to
flats. The BRE guide recommends that main
living room windows should receive at least
25% of the total Annual Probable Sunlight
Hours (APSH). It also recommends that at
least 5% of the APSH should be received
during the period between 21st September
and 21st March.
The availability of sunlight should be checked
for all open spaces where sunlight is required.
The APSH test can also be used to check the
impact of a development on the sunlight
availability to neighbouring properties. The
test should be applied to all main living rooms
and conservatories which have a window
which faces within 90 degrees of due south.
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The guide states that kitchens and bedrooms
are less important, although care should be
taken not to block too much sunlight.
The BRE guide explains that sunlight
availability may be adversely affected if the
centre of the window:
•
receives less than 25% of annual probable
sunlight hours, or less than 5% of annual
probable sunlight hours between 21st
September and 21st March and;
•
receives less than 0.8 times its former
sunlight hours during either period and;
•
has a reduction in sunlight received over
the whole year greater than 4% of annual
probable sunlight hours
This would normally include:
•
•
•
•
•
•
Gardens, usually the main back garden of
a house
Parks and playing fields
Children’s playgrounds
Outdoor swimming pools and paddling
pools
Sitting out areas, such as those
between non-domestic buildings and in
public squares
Focal points for views such as a group of
monuments or fountains
When planning new amenity areas, the BRE
guide recommends that at least 50% of the
area of each amenity space listed adjacent
should receive at least two hours of sunlight
on 21st March.
The 50% criteria mentioned above is also
applicable when assessing the impact of a
development on an existing neighbouring
amenity area. If, as a result of a new
development, an existing garden or amenity
area does not meet the 50% criteria, and the
area which can receive two hours of sunlight
on 21st March is less than 0. 8 times its former
value, then the Ioss of sunlight is Iikely to be
noticeable.
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A Guide to Legal
Rights of Light
Fact Sheet 3
HOW RIGHTS OF LIGHT ARE
ACQUIRED
HOW THEY ARE
MEASURED
In England and Wales a right of light is usually
acquired under the Prescription Act 1832.
Under the Act a right of Iight usually occurs
once light has been enjoyed through defined
apertures of a building for an uninterrupted
period of 20 years. Rights of Iight can also be
acquired by less common means such as:
A common myth is that rights of light can be
assessed using the ‘45 degree rule’. The 45
degree rule can sometimes be used to assess
planning applications; but has no standing for
claims under the Prescription Act 1832.
Time immemorial
Doctrine of Iost modern grant
Implied and express rights
A right of light is a civil matter and is separate
from daylight and sunlight as considered by
Local Planning Authorities. Rights of Iight
must therefore be considered even if planning
permission has been granted. Rights of light
can affect both domestic and non-domestic
properties and even non-habitable rooms are
capable of enjoying a right of light.
The ‘50:50 rule’ is generally accepted as the
appropriate way to measure light levels for
rights of light cases.
The 50:50 rule involves calculating the
percentage of a room’s area which can receive
adequate light. The calculations are typically
undertaken at a working plane 850mm above
the floor. A point on the working plane is
considered adequately lit if it can receive at
least 0.2% of the total illumination received
from the sky. An injury is generally deemed to
be caused where the area of a room receiving
light from at least 0.2% of the sky is reduced
to less than 50%. However, the 50% threshold
is not a rigid test. Please refer to Fact Sheet
5 which discusses some of the legal cases
where slightly different thresholds have been
deemed appropriate.
Rights of light calculations were historically
undertaken manually, using ‘Waldram
Diagrams’.
Nowadays, specialist computer programs are
used.
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REMEDIES AVAILABLE FOR A BREACH
(INJUNCTIONS/COMPENSATION)
An infringement may give the neighbouring
owner the right to seek an injunction to have a
proposed development reduced in size.
An injunction may also be sought to have a
completed development, or part of it,
demolished. If the loss of light is small a court
may decide to award compensation instead of
an injunction.
Injunctions
The case of HKRUK II (CHC) v Heaney (2010)
confirms that developers cannot force
affected parties to accept compensation in
lieu of an injunction - and that an injunction
may be granted even if it results in demolition
of completed building works.
Mr Heaney was awarded an injunction forcing
HKRUK II (CHC) to take down their two storey
extension to an office building in Leeds. The
court applied the principles of Shelfer v City
of London Electric Lighting Company (1895)
which put the onus on the developer to prove
that an injunction should not be granted.
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To avoid an injunction, the developer must
demonstrate all of the following:
1. The injury is small.
2. The injury is capable of being estimated in
money.
3. The injury can be adequately
compensated by a small money payment.
4. The case is one in which it would be
oppressive to the defendant to grant an
injunction.
Interestingly, the injury to Mr Heaney’s light
was to Iess than 1% of the whole building and
yet the court still granted an injunction
requiring the developer to remove the
offending works (at a cost estimated at over
£1,000,000).
An appeal by HKRUK II (CHC) was scheduled to
be heard in the Court of Appeal.
However, a settlement on undisclosed terms
was reached just before the hearing.
In a more recent case, Coventry v Lawrence
(2014), indicated that the courts may now
be willing to take a more flexible approach to
the grant of injunctions than in the past.
The judge in this case stated “The court’s power
to award damages in lieu of an injunction
involves a classic exercise of discretion, which
should not, as a matter of principle, be
fettered, each case is likely to be so
fact-sensitive that any firm guidance is likely to
do more harm than good”.
From a practical perspective, the uncertainty
of an injunction being granted is likely to put
off some affected parties from seeking an
injunction.
This is likely to make it easier for developers
to secure negotiated compensation
settlements with their neighbours, onmore
favourable terms than in the past, when an
injunction was almost guaranteed.
This was a noise nuisance case which did not
involve rights of light. In theory, the outcome of
this case may lead to fewer injunctions in the
future but it would be impossible to gauge with
any certainty how flexible the courts will be
when considering applications for right of light
injunction cases.
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COMPENSATION
In Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd (2006) the judge had
rejected a property owner’s claim for an injunction. In awarding compensation, the judge set out a
series of principles for calculating damages:
1. The overall principle is that the court must attempt to find what would be a “fair result” of a
hypothetical negotiation between the parties;
2. The context, including the nature and seriousness of the breach, must be kept in mind;
3. The right to prevent the development (or part) gives the owner of the right a significant
bargaining position;
4. The owner of the right with such a bargaining position will normally be expected to receive
somepart of the likely profit from the development (or relevant part);
5. If there is no evidence of the likely size of the profit the court can do its best by awarding a
suitable multiple of the damages for loss of amenity;
6. If there is evidence of the likely size of the profit the court should normally award a sum which
takes into account a fair percentage of the profit;
7. The size of the award should not in any event be so large that the development (or relevant part)
would not have taken place had such a sum been payable;
8. After arriving at a figure which takes into account all the above and any other relevant factors,
the court needs to consider whether the “deal feels right”
RIGHT OF LIGHT AGREEMENTS
In this case, the judge felt that a fair percentage of the profit which satisfied all of the above criteria
was one third. Applying that to the profit figure meant that Tamares was entitled to damages of
£50,000.
To allow a development to proceed, it is
sometimes necessary to agree compensation
with the affected parties. A right of light
analysis will confirm the extent of the light loss.
Book Value Assessment: Sometimes referred
to as loss of amenity valuation. The book
value is a measure of the value of the light
taken away from the affected property.
In the case between Forsyth-Grant v Allen (2008), the surveyor working for Allen approached the
claimant in 2002 and 2003 with an offer of compensation for any loss of light that they may incur.
However, these compensation offers and the surveyor’s requests for access to take measurements
were ignored by Forsyth-Grant, who subsequently submitted a claim for the entire profit arising from
the development.
This will determine whether or not
compensation needs to be offered. Where an
injury is identified, it may be necessary to have
regard to one or both of the following methods
used to assess the compensation:
Development Gain Assessment: In a
number of cases the courts have awarded
compensation based on a share of what the
developer stands to gain as a result of the
interference with light, as opposed to what the
affected party stands to lose.
The court refused to award any part of the development profit, due to Forsyth-Grant’s
refusal to negotiate. Instead, the Judge hearing the case awarded a nominal amount
of compensation for the light loss that had been suffered.
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Once an agreement has been reached, this
should be formalised by deed which will have
the effect of binding successors in title.
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Light Obstruction
Notices
Fact Sheet 4
OVERVIEW
Under Section 3 of the Prescription Act 1832, 20 years’ actual enjoyment of light gives rise to a
right of light.
Under Section 4 of the 1832 Act, the 20 year period can be interrupted by stopping the flow of light
for a period of one year. An interruption to the 20 year period will prevent acquisition of a right of
light.
Under Section 4 of the 1832 Act, where light has been actually enjoyed for more than 19 years and
1 day prior to an interruption of light, the right is capable of becoming absolute and indefeasible
under Section 3, since no interruption for a period of at least one year, prior to the expiry of the 20
year period, is possible. Therefore it is necessary to commence the interruption within 19 years
and 1 day of the start of the prescriptive period in order to prevent rights from being acquired.
Where rights of light have already been acquired under the 1832 Act, these will be extinguished if
a Light Obstruction Notice is served and acquiesced in for one year. However, before relying on
a Light Obstruction Notice in this way, careful consideration must be given as to whether the
dominant owner has the ability to bring a claim by any other means which do not rely on the 1832
Act, such as under the doctrine of Lost Modern Grant.
An interruption for the purposes of the 1832 Act requires either physical obstruction of the light or a
notional obstruction under the Rights of Light Act 1959.
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ACTUAL INTERRUPTION
NOTIONAL INTERRUPTION
Actual interruption has to be a physical
obstruction to the light of the dominant
building received over the servient land, such
as a new development. A dominant owner’s
obstruction of his own light does not necessarily amount to an obstruction under the
1832 Act, but can be evidence of abandonment or evidence of non-enjoyment during
the 20 year period.
The Rights of Light Act 1959 provides a
statutory method of interrupting the
enjoyment of light without the need for a
physical obstruction. This is in the form of
a Light Obstruction Notice registered as a
local land charge. This notional obstruction is
usually defined as a screen of infinite height
along the boundary. It makes the dominant
owner aware of the notional obstruction and,
as with the actual interruption, gives them one
year to protest and protect their rights. Should
they fail to do so within the year, then they are
said to have acquiesced and the prescriptive
period will have been interrupted.
With an actual interruption in place, the
dominant owner has one year to protest and
protect their rights. Should they fail to do so
within the year, then they are said to
have acquiesced to the obstruction and the
prescriptive period will have been interrupted.
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In the event that a notice is served in respect
of an aperture that already benefits from a
right of light, the remedy will be in the form
of declaratory relief and an order directing
cancellation or variation of the notice.
APPLICATIONS
APPLICATIONS
An application for a Light Obstruction Notice
must be made on the prescribed Form 1 and
be accompanied by three copies of the
application to be made to Local Planning
Authority (Form A). Copies of these forms can
be accessed by clicking on the hyperlink here.
The Registrar then determines what notices are
to be given to persons who appear to have an
interest in the building. A temporary certificate
will be issued only if the Lands Tribunal is
satisfied that the case is one of exceptional
urgency so it is necessary to explain the
grounds for the application. The Tribunal’s
definitive certificate is issued once it is satisfied
that the notices which the Registrar
determined should be given have been duly
given.
The following forms can be used to register
a Light Obstruction Notice. Before serving
such a notice we recommend that specific
legal and surveying advice is sought. This is
because serving the notice inappropriately
may result in the dominant owner
instigating legal proceedings.
DOWNLOADS :
FORM1 - Application under section 2 of the
Rights of Light Act 1959
Form 2 - Application for Registration of a
Light Obstruction Notice
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Important Rights of
Light Cases
Fact Sheet 5
COVENTRY V LAWRENCE
Coventry v Lawrence (2014), indicated that the courts may now be willing to take a more flexible
approach to the grant of injunctions than in the past. The judge in this case stated: “The court’s
power to award damages in lieu of an injunction involves a classic exercise of discretion, which
should not, as a matter of principle, be fettered .... each case is likely to be so fact-sensitive that
any firm guidance is likely to do more harm than good”.
Although this was a noise nuisance case which did not involve rights of light, in theory, the outcome
of this case may lead to fewer injunctions in the future. However, it would be impossible to gauge
with any certainty how flexible the courts will be when considering applications for right of light
injunctions.
From a practical perspective, the uncertainty of an injunction being granted is likely to put off some
affected parties from seeking an injunction. This is likely to make it easier for developers to
secure negotiated compensation settlements with their neighbours, on more favourable terms
than in the past, when an injunction was almost guaranteed.
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HKRUK II (CHC) V HEANEY (2010)
The case of HKRUK II (CHC) v Heaney (2010) confirms that developers cannot force affected
parties to accept compensation in lieu of an injunction - and that an injunction may be granted
even if it results in demolition of completed building works.
Mr Heaney was awarded an injunction forcing HKRUKII (CHC) to take down their two storey
extension to an office building in Leeds. The court applied the principles of Shelfer v City of
London Electric Lighting Company (1895) which put the onus on the developer to prove that an
injunction should not be granted. To avoid an injunction, the developer must demonstrate all of
the following:
1.
2.
3.
4.
The injury is small.
The injury is capable of being estimated in money.
The injury can be adequately compensated by a small money payment.
The case is one in which it would be oppressive to the defendant to grant an injunction.
Interestingly, the injury to Mr Heaney’s light was to less than 1% of the whole building and yet the
court still granted an injunction requiring the developer to remove the offending works (at a cost
estimated at over £1,000,000).
An appeal by HKRUK II (CHC) was scheduled to be heard in the Court of Appeal. However,
a settlement on undisclosed terms was reached just before the hearing.
FORSYTH-GRANT V ALLEN (2008)
In the case between Forsyth-Grant v Allen (2008), the surveyor working for Allen approached
the claimant in 2002 and 2003 with an offer of compensation for any loss of light that they may
incur. However, these compensation offers and the surveyor’s requests for access to take
measurements were ignored by Forsyth-Grant, who subsequently submitted a claim for the
entire profit arising from the development.
The court refused to award any part of the development profit, due to Forsyth-Grant’s refusal to
negotiate. Instead, the Judge hearing the case awarded a nominal amount of compensation for
the light loss that had been suffered.
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REGAN V PAUL PROPERTIES (2007)
In this case Paul Properties Ltd were in the process of constructing a development on the opposite
side of a road from Mr Regan’s ground floor maisonette. Mr Regan objected to the development as
it affected the light to his sitting room. The parties could not reach any form of agreement on the
issue, and despite this, Paul Properties Ltd continued to build. Mr Regan then sought an injunction to
prevent the interference to his right of light.
The High Court ruled that, whilst rights of light were affected and there was an actionable nuisance,
damages would be an appropriate remedy. The High Court in making its
decision concluded that the injury could be assessed in monetary terms and was small. It ruled that,
the effect on Mr Regan’s property was in the region of £5,500 and that forcing the developer to
modify the development would be oppressive.
Mr Regan appealed and the Court of Appeal overruled the High Court. The Court of Appeal did not
agree that the interference with the right of light was a small injury, but said that it amounted to
substantial interference. Furthermore, the Court of Appeal noted that whilst modifying the
development would have serious consequences for the developer, they knew of Mr Regan’s
objections well before the development had been constructed.
The Court felt it would be more oppressive to Mr Regan to deny him his right of light than it would
be to grant an injunction against the developer. The court therefore ordered the developer to
amend their building.
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TAMARES (VINCENT SQUARE) LTD V FAIRPOINT
PROPERTIES (VINCENT SQUARE) LTD (2007)
In this case the judge had rejected a property owner’s claim for an injunction. In
awarding compensation the judge set out a series of principles for calculating damages:
•
The overall principle is that the court must attempt to find what would be a “fair result” of a
hypothetical negotiation between the parties;
•
The context, including the nature and seriousness of the breach, must be kept in mind;
•
The right to prevent the development (or part) gives the owner of the right a significant
bargaining position;
•
The owner of the right with such a bargaining position will normally be expected to receive some
part of the likely profit from the development (or relevant part);
•
If there is no evidence of the likely size of the profit the court can do its best by awarding a
suitable multiple of the damages for loss of amenity;
•
If there is evidence of the likely size of the profit the court should normally award a sum which
takes into account a fair percentage of the profit;
•
The size of the award should not in any event be so large that the development (or relevant part)
would not have taken place had such a sum been payable;
•
After arriving at a figure which takes into account all the above and any other relevant factors,
the court needs to consider whether the “deal feels right”
In this case, the judge felt that a fair percentage of the profit which satisfied all of the above
criteria was one third. Applying that to the profit figure meant that Tamares was entitled to damages
of £50,000.
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MIDTOWN LTD V CITY OF LONDON REAL PROPERTY COMPANY
The question of whether the use of artificial light throughout the year should be taken to mean
that natural daylight is of little importance was central to this case. City of London Real
Property Company Ltd wanted to develop land opposite Midtown Ltd’s freehold property.
However, Midtown Ltd sought an injunction.
It was argued that although artificial light is regularly used in an office environment, this does
not detract from the fact that natural light has many benefits and is a sought after commodity.
Therefore, although natural light may be seen as less important in an office, when assessing
the impact on natural light it will not necessarily prevent an injunction being awarded. The
case confirms that artificial light is not a substitute for natural light in right of light cases.
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DEAKINS V HOOKINGS (1994)
ANKERSON V CONNELLY (1907)
Miss Deakins was awarded an injunction after the loss of light to her property was found by the
judge to be of real significance to somebody living in the affected room. The area of the living
room which was well lit was reduced from 50% to 41%. The kitchen was also affected but, as the
area which was well lit fell from 88% to 57.4%, it was considered by the judge not to be actionable.
The main question raised by this case was whether the alteration to the dominant owner’s
property extinguishes or interrupts an easement of light. The case confirms that, where a
window is reduced in size, the right of light remains. However, the dominant owner cannot bring
a successful claim against the servient owner’s obstruction if adequate light would have
remained had the window not been reduced in size.
The judge confirmed the position that the 50:50 rule (see Fact Sheet 3) was not a rigid test and
that in some cases a higher standard might be appropriate.
COLLS V HOME AND COLONIAL STORES (1904)
CARR-SAUNDERS V DICK MCNEIL ASSOCIATES LTD
AND OTHERS (1986)
This case established two important principles. Firstly, that when assessing rights of light it is
not only necessary to consider the current use and layout of the dominant property, but also
reasonable future uses and layouts. Secondly, that it is necessary to have regard to the relative
bargaining positions of the parties when setting the level of compensation.
Taking this into account, the judge awarded damages equivalent to around 2.7 times the value of the
light being taken away.
OUGH V KING (1967)
This case confirmed that the 50:50 rule is not a rigid test. It was argued by King that since 51%
of Ough’s room remained well lit there was no injury. The County Court judge ruled, after
visiting the property, that the light had been injured even though more than 50% of the room area
remained well lit. This position was later confirmed in the Court of Appeal.
SHEFFIELD MASONIC V SHEFFIELD CORPORATION (1939)
This case helped to establish the amount of light a dominant owner is entitled to. In the House
of Lords, Lord Lindley said:
‘ ...generally speaking an owner of ancient lights is entitled to sufficient light according to the
ordinary notions of mankind for the comfortable use and enjoyment of his house as a
dwellinghouse, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a
warehouse, a shop or other place of business.’
SHELFER V CITY OF LONDON ELECTRIC
LIGHTING COMPANY (1895)
This case established that the primary remedy for the interference with an easement is an
injunction. However, the judge went on to say that:
‘In my opinion, it may be stated as a good working rule that1.
2.
3.
4.
If the injury to the plaintiff’s legal rights is small,
And is capable of being estimated in money,
And is one which can be adequately compensated by a small money payment,
And the case is one in which it would be oppressive to the defendant to grant an injunction: then damages in substitution for an injunction may be given.’
Sheffield Masonic Hall had their north facing windows obstructed by the development of an art
gallery built by Sheffield Corporation. The Corporation argued that there was no injury since
the Sheffield Masonic Hall also had east facing windows, which faced an open space and
would continue to provide enough light to the room for ordinary purposes.
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DEVELOPMENT DESIGN
Ideally, a design will be developed with rights of light in mind. Once the main rights of light
constraints have been identified, the rights of Iight consultant can provide a three-dimensional
maximum envelope. The envelope can be used as a design tool within which the architect can work.
Rights of Light Risk
Mitigation Tips
Fact Sheet 6
Increasingly, we find that designing the development to avoid all conceivable rights of light risk is not
practical, or fails to optimise the use of the site. It is sometimes possible to build beyond the
maximum rights of light envelope. Very often the BRE Daylight and Sunlight guidelines used in
planning will be the main design driver. Setting aside legal rights of light constraints can very often
increase the scale of development that can be achieved on a site. Where rights of light are set aside
during the design process, the residual risk associated with rights of light can usually be dealt with by
other means. The most common ways of managing rights of light risks are explained in the sections
below.
COMPENSATION NEGOTIATIONS
To allow a development to proceed, it is sometimes necessary to agree compensation with
the affected parties. A rights of Iight analysis will confirm the extent of the light loss. This
will determine whether or not compensation needs to be offered. Where an injury is
identified, it may be necessary to have regard to one or both of the following methods used
to assess the compensation:
Book Value Assessment:
Sometimes referred to as loss of amenity valuation. The book
value is a measure of the value of the light taken away from the affected property.
Development Gain Assessment:
In a number of cases the courts have awarded compensation
based on a share of what the developer stands to gain as a result of the interference with light, as
opposed to what the affected party stands to lose.
Once an agreement has been reached, this should be formalised by deed which wiII have the effect
of binding successors in title.
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SECTION 237 TOWN AND COUNTRY PLANNING ACT 1990
Since the case of HKRUK II (CHC) v Heaney (2010), developers have been looking at ways to
proceed with developments without the fear of facing injunctions from third party objectors for
infringements of legal rights of light. Section 237 can sometimes allow a developer to
challenge the threat of an injunction. The basic principles are as follows:
As per LJ Dyson in the Barbers case:
“The objective of 237 is that provided work is done in accordance with planning permission
and subject to compensation the Local Planning Authority should be permitted to develop
its land if it best serves local interest.”
LIGHT OBSTRUCTION NOTICES
The effect of the above is that, subject to certain conditions, a commercial developer can bypass
the threat of an injunction arising from a neighbour seeking to protect their legal right of light. In
proceeding with this, a Local Planning Authority effectively makes use of legislation by
appropriating land from a developer. They must make sure that the land has been appropriated
for planning purposes (contributes to the economic / social / environmental wellbeing and is in
the public interest) as, if Section 237 is relied upon inappropriately, those that are affected may
apply for a Judicial Review to challenge its use.
It is possible to prevent the acquisition of a legal right of light under the Prescription Act 1832 by
causing an interruption to the flow of light for at least one year. The interruption may take the form
of a physical obstruction, such as a hoarding, or the new development itself. The Rights of Light
Act 1959 provides a way of interrupting the enjoyment of light without the need for a physical
obstruction. Under the Act, a notional obstruction is created in the form of a Light Obstruction
Notice registered as a local land charge. The notional obstruction can take a variety of forms but
is in most cases a screen of infinite height. Owing to the technicalities of the law, it is necessary
to commence the interruption (whether by physical or notional means) within 19 years and 1 day
of the start of the prescriptive period in order to prevent rights from being acquired.
Whilst Section 237 may allow a developer to side step the threat of an injunction, a Local
Authority should be careful when exercising its powers due to the risk of a Judicial Review. Use
of Section 237 does not take away all of the affected party’s rights and those that benefit from a
right of light will still need to be compensated.
A Light Obstruction Notice may also be used as a mechanism to identify rights of light which
already exist. Once the notice has been served, the neighbours have one year to assert their right
of light. If the notice remains unchallenged after one year, the right of light is deemed to have
been interrupted and the prescriptive clock is turned back to zero.
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To speak to a surveyor please call us on the telephone number below
or email [email protected] and we will be pleased to respond
via email or call you back
OUR OFFICES
INSURANCE
Insurance policies are available to protect developers from the risk of possible future claims
resulting from infringements of rights of light.
Hexham
Newcastle
Manchester
Smith Marston Ltd
Burnside House
Burn Lane
Hexham Business Park
Hexham
Northumberland
NE46 3RU
Tel 01434 607802
[email protected]
Smith Marston Ltd
Rotterdam House
116 Quayside
Newcastle upon Tyne
NE1 3DY
Tel 0191 260 3123
[email protected]
Smith Marston Ltd
53 Fountain Street
Manchester M2 2AN
Tel 0161 667 2850
[email protected]
Nottingham
Essex (Associate Office)
London (Associate Office)
Smith Marston Ltd
City Gate East
Toll House Hill, 6th Floor
Nottingham NGI 5FS
Tel 0115 896 0458
[email protected]
Right of Light Consulting
Burley House
15-17 High Street
Rayleigh
SS6 7EW
Tel 0800 197 4836 or
01268 777 199
[email protected]
Right of Light Consulting
First Floor, Holborn Gate
330 High Holborn
London WC1V 7QT
Tel 0800 197 4836 or
0207 000 1955
[email protected]
Smith Marston Ltd work alongside FCA regulated brokers who can seek quotations from
all major insurance providers.
Cases such as HKRUK II (CHC) v Heaney (2010) have highlighted the legal system’s increased
willingness to award an injunction against the deveIoper rather than simply awarding compensation
to the injured parties
The costs of compensation can be significant, sometimes being based on 30% or more of the
developer’s profit. The consequences of an injunction will in most cases be even more costly than a
damages claim - particularly if it involves demolition of part of a completed building.
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Berkshire (Associate Office)
Right of Light Consulting
Suite 7, Maple Court
Grove Park, Waltham Road
White Waltham
Maidenhead, Berkshire
Tel 01268 777 199
[email protected]
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